Proving the Obvious: Unnecessary Strictness or Business as Usual?

I. Introduction

Is the protection of human rights a suitable tool for advancing climate protection? What evidential hurdles must be overcome to convince courts that global climate change has caused harm to an individual? Can courts order specific policy measures that states are obliged to comply with? And what role do environmental NGOs play?

The European Court of Human Rights (ECtHR) addresses all these pressing questions in its judgment in the case of Fliegenschnee and Others v. Austria. In doing so, it reiterates a number of principles already established in earlier judgments and develops them further. The judgment forms part of a series of climate change cases that have recently been brought before the Court and thus sheds some light on the role that the ECHR can play in climate protection.

II. Facts and Claims

The applicants are three Austrian individuals and the environmental NGO Global 2000. They have applied to the Austrian Federal Minister for Economic Affairs, requesting that he issue an ordinance based on the Austrian Trade Act containing preventive measures to avert risks to human health and the environment arising from the production and distribution of certain products by companies. Specifically, the applicants have requested that the sale of fossil fuels be banned by a specified date. Alternatively, they have requested that the Minister take “other appropriate and equally effective measures”. The Minister refused to issue an ordinance on the grounds that such a measure could not be taken under the Austrian Trade Act, as this Act provides a basis only for trade-specific measures. This decision was upheld by the Vienna Administrative Court and, ultimately, by the Austrian Constitutional Court.

After losing in the domestic courts, the applicants applied to the ECtHR. They alleged a violation of Article 2 (right to life) and Article 8 (right to respect for private and family life). The third applicant also alleged a violation of Article 1 of Protocol No. 1 to the ECHR (protection of property). They argued that Austria had failed to take effective measures to combat climate change, thereby exposing them to harmful climate impacts such as droughts and heatwaves. In this regard, they referred to the 2023 Climate Protection Report by the Austrian Environment Agency, which indicates that the average temperature in Austria has already risen significantly and has led to corresponding harmful climate impacts. The applicants attributed these consequences to the fact that Austria has failed to meet its temperature targets, such as those set out in the Paris Agreement or the EU Effort Sharing Regulation.

The applicants claim that Austria has thus failed to fulfil its positive obligations under the ECHR. Articles 2 and 8 require States to protect the life and health of the individual applicants as well as the general public, represented by the fourth applicant. The third applicant, a farmer, also refers to Article 1 of Protocol No. 1 and complains that his economic livelihood is being endangered by climate change-induced heatwaves and crop failures. This gives rise to a claim against the Austrian State to enact measures such as a ban on fossil fuels in order to reduce greenhouse gas emissions and thereby combat climate change.

III. The Court’s Decision

The ECtHR has declared the application inadmissible. In its reasoning, the Court considers that several requirements have not been met. It is noteworthy that the Court consistently refers to the general principles it established in its KlimaSeniorinnen decision on climate change-related lawsuits.

a) Victim Status of the first three applicants

The Court already sees the requirements for victim status under Article 34 of the ECHR as a first hurdle. The Court states that the applicants must demonstrate that they are personally and directly affected by the alleged violation. In climate-related cases, this requires proof of a specific and serious impact of climate change on the individual applicant, not merely general environmental concerns. The ECtHR concludes that the first three applicants have not provided sufficient information to demonstrate the extent and manner in which they are personally affected, nor to what extent they are particularly vulnerable to the risks of climate change. Instead, the Court found that the applicants had relied mainly on general scientific evidence about climate change. Even if the applicants were to be regarded as particularly vulnerable, the impending adverse consequences must reach a certain level of severity to render individual protection necessary. As the three individual applicants have not submitted sufficient evidence in this regard, their complaints were deemed inadmissible pursuant to Article 35(3)(a) and (4) of the Convention.

b) Standing of the fourth applicant

The ECtHR also expresses doubts regarding the standing of the fourth applicant, the environmental NGO. The Court acknowledges that the organisation is lawfully established in Austria and that it has a dedicated purpose is to protect the environment. However, the Court considers the criterion that the organisation must also be dedicated to the defence of human rights in the context of environmental protection to be uncertain. According to the evidence submitted, no information can be gleaned on this point. The Court leaves the question of locus standi unanswered, however, as it considers the application to be inadmissible, for reasons set out in the following.

c) Violation of Article 8 and the Member State’s Margin of Appreciation

The ECtHR focused primarily on a possible violation of Article 8 of the ECHR, since the threshold for a violation of Article 2 is much higher.  In doing so, it concentrated exclusively on the fourth applicant, the ENGO, as the complaints of applicants 1-3 had already been declared inadmissible. Firstly, the Court reiterates its finding from the KlimaSeniorinnen judgment, according to which obligations on the State under Article 8 may arise in relation to combating climate change and protecting people from adverse climate impacts. Since Austria is required to adopt specific measures, the key issue is the extent to which the state enjoys a margin of appreciation. Here, the Court distinguishes between two different margins of appreciation. With regard to the state’s obligation to combat climate change and formulate corresponding targets, the margin is narrowed. However, when it comes to the question of the means by which the set targets are to be achieved, states are afforded a wide margin of appreciation. This encompasses the question of which mechanisms and policies are to be employed to achieve the climate targets.

With regard to the Fliegenschnee case, the Court concludes that the issue is not one of ‘whether’ but of ‘how’, since the application seeks the adoption of specific measures to reduce greenhouse gas emissions. The Austrian State is therefore afforded a wide margin of appreciation. It is precisely this wide margin that limits the Court’s room for manoeuvre. The ECtHR is thus very clear regarding the application in question: “[…] Article 8 cannot be read to guarantee a right to a particular measure by a specific State body […].”

Aside from this, the Court also criticises the fact that the fourth applicant has not sufficiently demonstrated the extent to which Austria’s regulatory framework is inadequate as a whole. The mere reference to the findings of the Austrian environmental authority is not considered sufficient. As a result, the fourth applicant’s complaints are also deemed manifestly ill-founded and are dismissed pursuant to Article 35(3)(a) and (4) ECHR.

d) Property rights 

With regard to the alleged violation of property rights under Article 1 of Protocol No. 1 to the ECHR, as raised by the third applicant, the Court notes first of all that this provision has not yet been applied in the context of climate-related cases. However, the ECtHR did not engage with the substance of the claim, but likewise criticised the lack of sufficient substantiation. The applicant had not sufficiently demonstrated that he was directly affected by the alleged violation. The application was declared inadmissible pursuant to Article 35(3)(a) and (4) of the ECHR.

IV. Broader Implications

What are the ramifications of this ruling? Some critics would say: none. They argue that the Court simply applied, in a consistent manner, the criteria previously established in the KlimaSeniorinnen ruling. Therefore, they claim that the outcome was expected and fits seamlessly into a series of unsuccessful climate cases recently decided by the ECtHR.

On the other hand, the Court’s decision is by no means trivial. For instance, the Court can be observed to apply a particularly rigorous standard when assessing evidence. Applicants must submit sufficient evidence of their affectedness, representativeness and inability to obtain redress domestically from the very beginning of the application. Since there were no written submissions in this case, the ECtHR did not give the applicants the opportunity to submit the missing evidence at a later stage. 

A further strictness can be observed in the treatment of ENGOs. Although the Court recognised standing for associations in the KlimaSeniorinnen case, the requirements remain high. Whilst the ENGO was recognised as an environmental organisation under Austrian law, the Court nevertheless considered its admissibility to be questionable. The ECtHR further required that the organisation must be dedicated to the defence of human rights in the context of environmental protection. The Court is thus applying a very narrow definition of an ENGO, which can be criticised with good reason. Does the protection of the environment – and thus of the natural foundations of life – not always benefit humans as well? Here, the Court appears to be demanding something that, given the obvious effects of climate change, no longer requires any proof at all.

Moreover, the Court fails to take the opportunity to provide substantive analysis on the application of Protocol No. 1 to the ECHR to climate-related cases. The applicants had likely hoped for more in this regard, particularly given that the Inter-American Court of Human Rights recently recognised a climate change-related violation of property rights in its Advisory Opinion. Nevertheless, the ECtHR does not rule out the possibility in principle, thereby leaving the door open for future applications.

What is understandable, however, is that the Court dismissed the claim seeking to impose specific climate measures on Austria. It is in keeping with the Court’s tradition to grant contracting states a margin of appreciation when it comes to upholding human rights. In line with its remit, the Court is not intended to make day-to-day political decisions but instead serves as a safety net. Whilst the applicants may have hoped that the Court would rule in a similar manner to the Dutch Urgenda case or the German Neubauer case, even these landmark judgments did not venture to prescribe specific political measures, such as a ban on fossil fuels.

All in all, the ECtHR stays consistent with itself in the Fliegenschnee case. The Court draws primarily on previous case law and makes clear that it cannot be expected to order policy measures. The high standards of evidence also correspond to previous rulings but are still stringent given the obvious consequences and the urgency of climate protection. Future applicants may well think twice about whether they wish to take this burden. Perhaps this effect is even intended by the ECtHR. The Court’s role within the European framework thus is that of a guardian of human rights, to which recourse may only be had as a last resort. Nevertheless, this role must not be underestimated, since it ultimately too contributes to a ‘high level of environmental protection’. The path for future climate-related rulings remains open and will undoubtedly continue to be followed in the future.

Bibliography

Fliegenschnee and Others v. Austria [18 November 2025] European Court of Human Rights Application no. 40054/2.

Heri C, ‘Learning from Inadmissibility: The Latest on Climate Change in Fliegenschnee’ (ECHR Blog, 12 December 2025) <https://www.echrblog.com/2025/12/learning-from-inadmissibility-latest-on.html>.

Lumerding A and Maurer M, ‘High Thresholds and Wide Margins: Fliegenschnee and Others v. Austria and the Consolidation of the ECtHR’s Climate Jurisprudence’ (Verfassungsblog, 17 February 2026) <https://verfassungsblog.de/high-thresholds-and-wide-margins/>.

Neubauer [24 March 2021] Bundesverfassungsgericht 1 BvR 2656/18, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20.

State of the Netherlands v. Urgenda Foundation [20 December 2019] Supreme Court of the Netherlands ECLI:NL:HR:2019:2007.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [9 April 2024] European Court of Human Rights Application no. 53600/20.

Verschuuren J, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: Werner Scholtz and Jonathan Verschuuren (eds), Regional Environmental Law, Edward Elgar 2015, p 363-385.